TaxTMI 
TaxTMI 
2005 (11) TMI 87
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....sary, dismissed the writ petition and confirmed the order of remand as ordered by the CEGAT, Chennai 6. 4. Writ Appeal No. 2219 of 2002, is filed against the order of the very same learned Judge dated 19-6-2002 made in Writ Petition No. 21298 of 2002, in and by which, the learned Judge confirmed the order of the CEGAT and remitted the matter back to the Original Authority for de novo consideration with an observation that the Original Authority has to pass fresh orders as per Rule 233B of the Central Excise Rules, 1944 (in short "the Rules"), de hors to para 6 of the CEGAT's order and dismissed the writ petition. 5. The brief facts of the case of the appellant/petitioner in Writ Appeal No. 2114 of 2002. (a) Lorry Body Labour Works comes under the Small Scale Sector Industry of Lorry Body Building. Lorry Body Building is done on the duty paid Motor Vehicle Chasis supplied by the customers. Body building falls under Central Excise Tariff Heading 87.07. It is a specified item under the Small Scale Industries Exemption Notification No. 175/86. Central Excise, dated 1-3-1986. When the new Tariff Act of Central Excise 1985 was introduced, Lorry Body Building came under Tariff 87....
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....aryana High Court by its judgment dated 2-9-1997, in the case reported in 1997 (94) E.L.T. 442. Following the said decision of the Supreme Court, the CEGAT, dismissed the appeals on 14-6-1999, filed by the Revenue and allowed the appeals filed by the petitioners, holding that there is no liability to pay Rs. 4,000/- per vehicle either in cash or by way of bank guarantee. Those who have paid the duty in cash at the rate of Rs. 4,000/- per vehicle had filed applications claiming refund of the same, since the payments made in cash were made under protest as well as the decision of the Supreme Court was rendered on 2-9-1997 and the CEGAT's final decision was made on 14-6-1999, the question of limitation or time bar does not arise at all. (e) On receipt of the claim for refund, the Department issued show cause notice to the claimants, calling upon them to show cause why the refund applications should not be dismissed on the ground that they had not followed the procedure set out under Rule 233-B of the Central Excise Rules, why the claims were not made within six months from the relevant date and why they had not produced any documents to show that the duty was not passed on to their....
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....back to the Original Authority and the learned single Judge also committed an error in affirming the remittal order of the CEGAT. Mr. C. Natarajan, learned senior counsel would point out that the Tribunal itself ought to have decided the issue on merits. Mr. R. Thiyagarajan, learned senior counsel would contend that the Tribunal committed an error in remanding the matter back to the Original Authority without assigning adequate reasons, when the Commissioner (Appeals) considered and decided in favour of the Lorry Body Builders. 9. On the other hand, Mr. V.T. Gopalan, learned Additional Solicitor General, appearing for the Central Excise Department contended that the CEGAT is justified in remitting the matter back to the Original Authority, since relevant matters of fact have to be considered. However, according to him, the observation of the learned Judge directing the Original Authority to decide the issue without reference to the observation/conclusion made in para 6 of the order of the CEGAT is not correct. 10. We have perused the relevant materials and considered the rival contentions. 11. For convenience, we shall refer the parties as arrayed before the learned single....
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....o be considered. Before going into the same, it is relevant to refer the statutory provisions applicable to the cases on hand. "Section 11B of the Act, speaks about claim for refund of duty. As per sub-section (1), a person claiming refund of any duty of excise has to make an application for refund to the Assistant Commissioner or Deputy Commissioner of Central Excise before the expiry of six months from the relevant date and in such manner as prescribed, and the application shall be accompanied by necessary documents or other evidence to establish that the amount of duty of excise in relation to which refund is claimed was collected from, or paid by him and the incidence of such duty had not been passed on by him to any other person. Second proviso to sub-section (1) of Section 11B makes it clear that the limitation of six months shall not apply where any duty has been paid under protest. Sub-section (2) speaks about procedure to be followed by Assistant Commissioner/Deputy Commissioner on the application made for refund. Rule 2(14) of the Rules defines "Proper Officer". Rule 233B refers procedure to be followed in cases where duty is paid under protest. Sub-rule....
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....o make a refund claim on the basis of decision of a Court or Tribunal rendered in the case of another person. In view of the above decision, the petitioners have to inform whether they were parties in the case of Ram Body Builders to enable them to claim refund. However, Mr. C. Natarajan, learned senior counsel by drawing our attention to the decision of the Supreme Court in the case of U.P. Pollution Control Board v. Kanoria Industrial Ltd., reported in 2001 (2) SCC 549, would contend that when the Supreme Court declared a law and held that a particular levy is valid or not valid, it cannot be contended that the said decision would bind only those parties who were before the Court and not others in respect of whom appeal had not been filed. The following conclusion of their Lordships is pressed into service. "When the Supreme Court declares a law and holds either a particular levy as valid or invalid it is ideal to contend that the law laid down by the Supreme Court in that judgment would bind only those parties who are before the Court and not others in respect of whom appeal had not been filed. To do so is to ignore the binding nature of a judgment of the Supreme Court under ....
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.... are entitled to refund of the amount. 20. We have already referred to the relevant provisions of the Act and the Rules applicable to the claim for refund and the decisions of Supreme Court in Ram Body Builders case as well as Mafatlal Industries case. As said earlier, the applicants have to furnish the required details, including the particulars regarding application made, the Officer/authority to whom it was made, whether the assessment was provisional or reached its finality and whether the payment of duty had not been passed on to the customer. Though the learned senior counsel submitted that all the relevant details are available, as discussed earlier, the factual materials and documents cannot be placed before the CEGAT and all those details/particulars have to be verified by the Original Authority in order to arrive at a conclusion that the applicants are entitled to an order of refund. In such circumstances, we are of the view that the CEGAT is fully justified in remitting the matter back to the Original Authority for de novo consideration. However, as rightly observed by the learned single Judge, the CEGAT having found that the matter requires de novo consideration at t....